IN THE CASE OF: 

		BOARD DATE:  17 January 2013

		DOCKET NUMBER:  AR20120012937 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests an upgrade of his undesirable discharge to an honorable discharge.

2.  The applicant states he made mistakes he would not make again.  He was young while serving in the Army and it was his first time away from home.  His parents were getting a divorce while he was serving and he believed by going home that he could prevent his parent’s divorce.

3.  The applicant did not provide any additional documentary evidence.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 2 February 1973 at age 19.  He completed training and he was awarded military occupational specialty 13A (Cannoneer).  The highest rank/grade he attained while serving on active duty was private/E-2.

3.  The applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 11 May 1973 for being absent without leave (AWOL) from 3 May 1973 to 11 May 1973.

4.  On 3 June 1974, charges were preferred against the applicant for being AWOL from 2 August 1973 to 19 May 1974.  The applicant consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effect of an undesirable discharge, and of the procedures and rights available to him.  

5.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  In his request for discharge, the applicant indicated he understood his discharge may be under other than honorable conditions.

6.  On 19 June 1974, the separation authority approved the applicant’s request for discharge and directed he be issued an Undesirable Discharge Certificate.  On 3 July 1974, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued confirms he completed a total of 7 months and 4 days of creditable active military service and had a total of 298 days of lost time.

7.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

8. There is no documentation in the applicant’s personnel service record that shows he sought assistance from his chain of command for the personal problems he stated in his application.

9.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the regulation provides, in pertinent part, when a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge 


for the good of the service in lieu of trail by court-martial.  At the time, an under other than other conditions discharge is normally considered appropriate.
   
   a.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

	b.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for an upgrade of his undesirable discharge to an honorable discharge was carefully considered; however, there is insufficient evidence to support his request.

2. The applicant contends that his discharge should be upgraded because he was young and foolish at the time of his service.  His record shows he was 
19 years of age when he enlisted.  There is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed military service.

3.  The applicant’s record includes evidence that shows he was AWOL for more than 298 days.  He was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  

4.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or a general discharge. 



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ____X___  ___X__ _  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _  X ______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20120012937



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120012937



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1